Sixth District Overturns Fee Award Because A Subpoena Request Is Not Within the Ambit of the Anti-SLAPP Motion to Strike Procedure.
Plaintiff, a New York resident, obtained an Ohio state court order with subpoena power to obtain information from Google about anonymous web blogs that were allegedly defaming plaintiff. After Google declined to respond to Ohio subpoenas, plaintiff had his California attorney endorse the subpoenas in Califonia. Google notified the web blogs, who moved under the anti-SLAPP statute (Code of Civil Procedure section 425.16) to strike the subpoenas. The trial judge granted the motion and awarded the anonymous web blogs $20,330 out of their requested $42,241.89 in fees and costs as the prevailing parties. Plaintiff timely appealed both the merits and fee award orders. (BLOG NOTE—Good move, as discussed in our category “Cases: Appeability.” With rare exceptions, fee awards are separately appealable and failure to separately appeal can mean there is no review of the fee orders.)
Plaintiff obtained a reversal of both orders. The Sixth District determined that a subpoena request was not the equivalent of a “cause of action” under section 425.16, such that it could not be the subject of an anti-SLAPP motion. Justice McAdams, in an impassioned concurring opinion, urges the Legislature to consider whether the statute should be expanded to include third-party subpoena requests of this type given that some litigants will try to use subpoena requests “for the purpose of silencing a critic by harassment, ostracism, or retaliation.”
Plaintiff’s fee reversal was obtained in Tendler v. www.jewishsurvivors.blogspot.com, Case No. H031130 (6th Dist. June 10, 2008, certified for publication on July 7, 2008).
Our friend H. Scott Leviant at The Complex Litigator also has an informative July 8 post on this case